SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Lauren Christie, Clarks Attorneys
difference between the spouses’ respective accruals (unless forfeiture is ordered in limited circumstances). Where parties have a South African prenuptial con ‑ tract out of community of property without the appli ‑ cation of the accrual system, each party retains assets in their own names, unless the court makes an order for an equitable redistribution of assets, having regard to a number of factors detailed in Section 7 of the Divorce Act. If the proprietary consequences of the marriage are governed by the laws of another country, the South African courts apply that particular country’s laws to the division of assets, as if the divorce were being heard in that country. Therefore, expert evidence about the applicable law will be necessary. The choice of law in relation to the proprietary consequences will be determined in accordance with the lex domicilii matrimonii, or by a choice of law clause in a prenuptial agreement. Financial Orders to Regulate or Reallocate Assets Absent an agreement between the parties, the court has the authority to make an order regarding: • the payment of spousal maintenance for any period (please see 2.4 Spousal Maintenance ); • an equitable redistribution of assets; • forfeiture of any patrimonial benefit arising as a result of the parties’ matrimonial property regime; and/or • an adjustment upon division of a joint estate (only applicable to marriages in community of property). As set out above, the court will as a starting point apply the parties’ matrimonial property regime before considering any of the above additional claims raised by either party. If the parties are married by way of a South African prenuptial agreement that excludes all sharing of assets, one or both parties may bring a claim against the other for a redistribution of assets in terms of Sec ‑ tion 7 (3) of the Divorce Act. Factors the court will consider include whether: • the order is just and equitable;
• the party contributed directly or indirectly towards the maintenance or increase of the other party’s estate; and • the party saved expenses that would otherwise have been incurred. Each claim is considered on its own merits, and there is no automatic starting point. If the parties are mar ‑ ried in community of property, alternatively, by way of a South African prenuptial agreement that includes the accrual system, a party may bring a claim for an order that the patrimonial benefits that may be due to their spouse by virtue of the parties’ matrimonial property regime be forfeited, either wholly or in part, in terms of Section 9 (1) of the Divorce Act. The court may grant an order for forfeiture if it is satisfied that one party will be unduly benefitted if the order is not granted. Factors the court will consider include: • the duration of the marriage; • the circumstances that gave rise to the breakdown of the marriage; and • any substantial misconduct on the part of either of the parties. If the parties are married in community of property, there are certain juristic acts that cannot be under ‑ taken by a spouse without the consent of the other (refer to Section 15 of the Matrimonial Property Act, 88 of 1984). If it becomes apparent that a spouse has performed any of the specified juristic acts without the requisite consent and the joint estate suffers a loss as a result, a party may bring a claim in a divorce action for an adjustment in terms of Section 15 (9)(b) of the Matrimonial Property Act. An adjustment order serves to compensate the innocent spouse for their share of the loss during the division of the joint estate. Prior to granting such an order, the court must be satisfied that: • the spouse against whom the claim is brought has performed one or more of the specified juristic acts without the requisite consent of the other spouse; and • the transaction resulted in an actual financial loss to the joint estate.
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